Re FD (Inherent Jurisdiction: Power of Arrest) [2016] EWHC 2358 (Fam)

Law Reporter

(Family Division, His Honour Judge Bellamy, sitting as a deputy High Court judge, 28 September 2016)

Jurisdiction – Inherent jurisdiction – Application for non-molestation for capacitous vulnerable adult – Whether a power of arrest could be attached

The judge found that the court lacked jurisdiction to attach a power of arrest to a non-molestation injunction in this case.

The 18-year-old woman was vulnerable but had capacity. The local authority applied for injunctions under the inherent jurisdiction to prevent the woman’s father and his male friend from having contact with the woman and going to her home. It fell to be determined whether a power of arrest could be attached to an injunction granted under the inherent jurisdiction in relation to a vulnerable adult who had capacity.

There were concerns that the father and his friend had forced the woman to take drugs including heroin. An expert assessment concluded that the woman lacked capacity to make decisions in relation to management of her property and financial affairs but that she had capacity in other areas including to instruct a solicitor and to make decisions on contact. However she was considered to be extremely vulnerable. She had a learning disability, significant attachment problems and was extremely susceptible to the influence of her father and his friend.

There was no doubt that the court had the power to grant an injunction under the inherent jurisdiction to protect a vulnerable adult who had capacity and to whom the Mental Capacity Act 2005 did not apply. However, there was no statutory power of arrest in this case as Part IV of the Family Law Act 1996 was amended from July 2007 to remove the power to attach a power of arrest to a non-molestation injunction.

It was a matter of concern that the woman had not been eligible for legal aid as an error with her State benefits meant she was entitled to a back payment of £12,000. That amount of capital took her over the threshold of entitlement to legal aid. The Legal Aid Agency refused to disapply the eligibility limits in this instance. A further hearing was listed and, therefore, the judge invited the agency to reconsider its decision as a matter of urgency.

This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than a person identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of FD, AD and GH must be strictly preserved.